### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIA ENERGY COMMISSION, ) ) Petitioner, 

## ) ) V. 

## ) ) UNiTED STATES DEPARTMENT OF ) ENERGY, and SAMUEL W. BODMAN, ) Secretary of Energy, ) ) Respondents ) No. 07-7 1576

RESPONSE OF PETITIONER CALIFORNIA ENERGY COMMISSION IN OPPOSITION TO RESPONDENT DEPARTMENT OF ENERGY'S MOTION rro DISMISS

William M. Chamberlain, Chief Counsel, SBN 050264 Jonathan Blees, Assistant Chief Counsel, SBN 070191 William Staack, Senior Staff Counsel, SBN 173579 Dennis L. Beck, Jr, Staff Counsel, SBN 179492 Attorneys for Petitioner CALIFORNIA ENERGY COMMISSION 1516 Ninth Street, Mail Station 14 Sacramento, California 95814-5512 (916) 654-3953 JBlees @energy.state.ca.usable of Contents

Introduction Background Suiinirnary of Argument Argument Pctg e I 2

6 I. DOE's Waiver Determinations Under Section 6297(d) Are for All Practical Purposes Implementati on of Its Standards Decisions Under Section 6295, and Therefore the Former Type of Rulemaking Should Be Reviewed in the Same Court That Reviews the Latter Type of Rulemaking the Court of Appeals. 6 II. Ambiguity in the EPCA Judicial Review Statutes Should Be Resolved in Favor of Court of Appeals Jurisdiction. 7 III. A Recent Second Circuit Case, Which Applied EPCA's Judicial Review Provisions To Very Similar Facts, Strongly Indicates That The Ninth Circuit Has Jurisdiction Over the instant Case. 9 IV. The Cases Cited by DOE Do Not Support Its Position. 14 Conclusion 16

IUNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIA ENERGY COMMISSION, 

## ) ) Petitioner, ) 

## ) V. 

## ) ) UNITED STATES DEPARTMENT OF ) ENERGY, and SAMUEL W. BODMAN, ) Secretary of Energy, ) 

## ) Respondents 

## ) No. 07-71576

RESPONSE OF PETITIONER CALIFORNIA ENERGY COMMISSION IN OPPOSITION TO RESPONDENT DEPARTMENT OF ENERGY'S MOTION TO DISMISS Introduction This case involves DOE's refusal to allow California's water efficiency standards for clothes washers to take effect. Because DOE has adopted energy efficiency standards for clothes washers, California's water standards for those

The caption here is the caption on the Petition for Review. Court documents have added the notation "DOE No. Clean Water Act, Eastern District of California, Sacramento" following the docket number. The case, however, has nothing to do with the Clean Water Act, nor does it arise in the Eastern District of California; rather, the case is a direct appeal from the action of a federal agency (DOE) implementing the Energy Policy and Conservation Act ("EPCA"). In addition, the caption on the Petition lists both the "United States Department of Energy" and "Samuel W. Bodman, Secretary of Energy," as Respondents (to whom we refer collectively as "DOE"), but court documents list only the "Department of Energy."

Iappliances cannot take effect, according to federal law, unless DOE grants a

waiver from federal preemption. DOE denied California's request for a waiver after an extended rulemaking proceeding culminating in findings allegedly supported by the record, and California's Energy Conrniission, which adopted the state standards, petitioned this Court for review.

DOE argues that in the absence of a statutory provision expressly granting jurisdiction to either the courts of appeals or the district courts to hear matters of this type, California is relegated to the district courts. (Mot. to Dismiss 2-3.) However, the statutory scheme, principles of judicial review of administrative action, considerations of judicial economy and efficiency, and the applicable case law - including one of the few cases reviewing DOE action on appliance efficiency standards, and the only one on jurisdiction to review such actions - all indicate that this Court has jurisdiction. Therefore, Petitioner California Energy Commission ("CEC") urges the Court to deny DOE's Motion to Dismiss ("Motion")

Background The CEC has been adopting and implementing efficiency standards for appliances since 1976. See Cal. Pub. Res. Code § 25402(c). DOE has been doing so since 1987, under the Energy Policy and Conservation Act ("EPCA"), as

2amended. See 42

## U.S.C. § 6295; id., Historical and Statutory Notes. In general,

DOE's efficiency standards preempt state efficiency standaids, but DOE may grant waivers from federal preemption. 42

## U.S.C. § 6297(c)-(d). DOE also establishes procedures for the testing of appliances, id. § 6293, and the Federal Trade Commission establishes regulations on appliance labeling, id. § 6294.

In 2001, DOE adopted energy efficiency standards for residential clothes washers, pursuant to section 6295. 66 Fed. Reg. 3314, codified at 10 C.F.R. § 430.32. (DOE decided not to adopt water efficiency standards for those appliances.) In 2002, the CEC adopted energy and water efficiency standards for commercial clothes washers. See Cal. Code Regs. tit. 20, § 1605.3(p)(l). (Because commercial clothes washers were not at that time covered by federal law, those California standards were not preempted then.)

Later in 2002, the California Legislature enacted a statute that required the CEC to adopt water efficiency standards for residential clothes washers. 2002 Cal. Stat., ch. 421 (enacting Cal. Pub. Res. Code § 25402(e)(l)). Recognizing that the water standards would he preempted by federal law (because of DOE's previous adoption of energy standards for residential clothes washers under Section 6295), the Legislature also required the CEC to petition DOE for a waiver of preemption.

3Id. The CEC responded by adopting the standards, Cal. Code Regs. tit. 20, § 

# l6OS.2(p)(l), and by submitting the waiver petition that is at issue here.

The CEC submitted its waiver petition to DOE on September 16, 2005, and DOE accepted the petition as "conform[ing] to the requirements of [DOE's regulations] and . . * contain[ing] sufficient information for the purposes of a substantive decision," 10 C.F.R. § 430.42(f)(1), on December 28, 2005. 71 Fed. Reg. 78160 (Dec. 28, 2005). EPCA requires DOEto rule on waiver petitions in rulemakings, so the agency instituted a proceeding pursuant to the federal Administrative Procedure Act. 72 Fed. Reg. 6022 (Feb. 6, 2006); see 42 U.S.C. § 6297(d)(1)-(5), 6306(a)(1). During the proceeding, DOE received, and placed into the rulemaking file, over 70 public comments on the requested waiver. See

www

.eere

.energy. gov/buildings/appiiance_standards/statepetitions

.html (last visited June 10, 2007). DOE denied the waiver petition on December 28, 2006, making various findings (supposedly on the basis of the record, although Petitioner disagrees that DOE's findings were so based) as required by 42 U.S.C. section 6297(d). 71 Fed. Reg. 78157 (Dec. 28, 2006). Because DOE's regulations state that a request for reconsideration of a waiver denial is a prerequisite to judicial review, 10 C.F.R. § 430.48(d), on January 29, 2007 the CEC requested reconsideration. DOE took no action on the reconsideration request, which was

4thus denied by operation of law on February 28, 2007. See id. § 430.48. As a

result, DOE's clothes washer energy efficiency standards under Section 6295 continue to preempt California's water efficiency standards. The CEC filed a Petition for Review in this Court on April 21, 2007.

Summary of Argunient EPCA's judicial review provisions do not expressly assign jurisdiction over DOE's section 6297(d) waiver actions either to the courts of appeals or to the district courts. But they do limit the jurisdiction of the district courts to situations in which there is no rulemaking record and thus in which judicial fact-finding is likely to be required, while they assign rulemaking review exclusively to the courts of appeals. Therefore, the general rule that the courts of appeals should review rulemakings should be applied to section 6297(d) waiver rulernakings. Moreover, DOE's grants (or denials) of waivers under section 6297(d) are tantamount to modifying (or reaffirming) the preemptive effect of standards adopted under section 6295. Therefore, waiver actions should be reviewed in the same manner as section 6295 standards - in the courts of appeals. Finally, considerations of judicial economy strongly favor jurisdiction in the courts of appeals.Arc ument

DOE's Waiver Determinations Under Section 6297(d) Are for All Practical Purposes Implementation of Its Standards Decisions Under Section 6295. and Therefore the Former Type of Rulemaking Should Be Reviewed in the Same Court That Reviews the Latter Type of Rulemaking - the Court of Appeals. Section 6297(d) does not establish any regulatory function of DOE that has any meaning apart from determining the reach and effect of the section 6295 efficiency standards. It is DOE's efficiency standards, which are adopted under section 6295 and for which jurisdiction is expressly vested in the courts of appeals, that preempt state efficiency standards. 42 U.S.C. § 6295, 6297(c). Therefore, when DOE grants a preemption waiver under section 6297(d), the agency is in effect amending the section 6295 standard to allow the state standard to take effect. When DOE denies a waiver, the state that sought a waiver becomes "adversely affected by a [standard] prescribed under section

. . 6295." Id. 

## § 6306(b)(l). Therefore, section 6297(d) waiver rulemakings are inherently a part of DOEs section 6295 rulemaking responsibilities, and both should be reviewed in the same court - the courts of appeals. "[S]tatutes authorizing review of specified agency actions should be construed to allow review of agency actions which are functionally similar or tantamount to those specified actions." Therinalken, Inc. v. (1.3. Envti. Prot. Agency, 25 F.3d 1233, 1237 (3d Cii'. 1994).

6II. Ambiguity in the EPCA Judicial Review Statutes Should Be Resolved in

Favor g, Court of ppeals Juridic.

.....

.... EPCA's judicial review provisions deal expressly with only some of the powers and duties that DOE implements. Jurisdiction is assigned to (1) the district courts over a short list of narrowly-prescribed cases (which obviously do not extend to section 6297(d) waiver determinations), and (2) the court's of appeals over some, but not all, of DOE's rulemaking activities. 42 U.S.C. § 6305, 6306(b)-(c). For all other DOE actions - such as the type of waiver decision under section 6297(d) that is challenged in the instant case - the judicial review provisions are silent. 1d Does that mean that there is no judicial review of waiver decisions? Of course not. "The mere fact that a statute is silent on the issue of review is not controlling. To the contrary, [the courts] 'begin with the strong presumption that Congress intends judicial review of administrative action." Dickson v. 

### Secy of Def

, 

### 68 F.3d 1396, 1401 (D.C. Cir. 1995) (quoting Bowen v. Mich. Acaci. of Family Physicians, 476 U.S. 667, 670 (1986)).

The issue, then, is which court has jurisdiction. Unfortunately, "the case law Statutory provisions governing [on jurisdiction] is complicated and confused

" 3 review jurisdiction are often poorly drafted, ambiguous, [or] incomplete Richard J. Pierce,Adinin. Law Treatise § 18.2 (4th ed. 2002). Fortunately, the Second Circuit has provided guidance in interpreting these very judicial review

7provisions, noting that '[i]f there is any ambiguity as to whether jurisdiction lies

with a district court or with a court of appeals we mustresolve that ambiguity in favor of review by a court of appeals." NRDC v. Abraham, 355 F.3d 179, 193 (2nd Cir. 2004) ("NRDC v. Abraham (Appliances)") (quotingNat'l Parks ConservationAss'n V. Fed. Aviation Admin., 998 F.2d 1523. 1529 (10th Cir. 1993)) (emphasis added).

This Court can view Congress's failure to include section 6297(d) in the judicial review provisions as an inadvertent oversight, or as a deliberate action to give the district courts jurisdiction over waiver proceedings. The latter makes little sense in light of the statutory structure. It seems highly unlikely that Congress intended to (1) place judicial review of DOE's major rulemakings on test methods and efficiency standards, under sections 6293 and 6295 (and the FTC's rulemakings on labeling under section 6294), in the courts of appeals, but (2) relegate the major ruiemakings on waivers, nominally under section 6297(d), to the district courts. In light of the narrow list of matters assigned to the district courts, and the assignment of all of DOE's non-6297(d) rulemakings to the court of appeals, a conclusion that Congress deliberately intended to ilace judicial review of section 6297(d) rulemakings in the district courts, though it did not mention them in the section prescribing district court jurisdiction, would stretch credulity.

8III. A Recent Second Circuit Case. Which Applied EPCA's Judicial Review

Provisions to Very Similar Facts. Strongly Indicates That The Ninth Circuit Has Jurisdiction Over the Instant Case. The Second Circuit recently examined a very similar situation - DOE's attempt to delay the effective date of a previously-adopted section 6295 efficiency standard - and concluded that the courts of appeals, not the district courts, have jurisdiction. NRDC v. Abraham (Appliances), 355 F.3d 179 (2nd Cii. 2004). Although DOE's Motion in the instant case fails to cite this opinion, it is the only opinion that addresses which court has jurisdiction over DOE appliance actions.

The Second Circuit held that although EPCA does not expressly provide for judicial review of DOE attempts to delay effective dates, the court of appeals had jurisdiction over the challenge because such delays were functionally part of DOE's adoption of efficiency standards under section 6295 - actions for which section 6306(b)(1) places jurisdiction in the courts of appeals. 355 F.3d at 192-93 The Second Circuit supported its determinations with three U.S. Supreme Court "guideposts" - the overall statutory structure, the legislative history, and the traditional allocation of judicial authority to review agency action. Id. at 193 (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737 (1985) ("Lorian")).

With regard to the first two guideposts, the court stated that "most acts undertaken by DOE under its grant of authority regarding home appliances are

9subject to review by the coui of appeals, and there is no clear expression of

legislative intent that amendments to the effective dates of rules promulgated under the EPCA we excepted hom this requirement." 355 F.3d at 193. Those factors were consistent with the third guidepost: the "sound policy of placing initial [rulemaking] review in the courts of appeals." Id. (quoting Lorian, 470 U.S. at 745). Explaining that "sound policy," the court stated that "[r]ulemaking proceedings do not ordinarily necessitate additional factfinding by a district court to effectuate the review process," while the types of proceedings EPCA assigns to the district courts "ordinarily would entail additional factfinding, as they do not reflect the culmination of a structured rulemaking process with its attendant record." id. at 193-94 (citation omitted).

Thus inNRDC v. Abraham (Appliances), the court found that DOE's effective-date delays (1) were "in the nature of rulemaking proceedings because they are the result of an affirmative agency decisionmaking process reflected in the Federal Register, and thus would not require additional factfinding" and (2) were "tantamount to an amendment or rescission of the [Section 6295] standards, which clearly falls within section 6306(b)(l)'s ambit [of judicial review by the courts of appeals]." Id. at 194 (citing, e.g., The rinalkem, Inc. V. EPA, 25 F.3d 1233, 1237 (3d Cir. 1994) ("statutes authorizing review of specified agency actions should be

10construed to allow review of agency actions which are functionally similar or

tantamount to those specified actions")).

The same considerations apply here. First, waiver actions are not merely "ii the nature of rulemaking proceedings," they arerulemaking proceedings. Second, as we discussed at page 7 above, waiver actions under section 6297(d) are "tantamount to an amendment" of section 6295 standards (if a waiver is granted), or to reaffirmations of the preemptive effect of section 6295 standards (if a waiver is denied, as here), so judicial review should be in the same place - the courts of appeals. Moreover, there is no indication either in EPCA itself, or its legislative history, that judicial review should not be in the court of appeals. See42 U.S.C. § 6306, Historical and Statutory Notes; S. Rep. No. 100-6, at 11, reprinted in 1987 

### U.S.CC.A.N. 52, 62; H.R. Rep. No. 100-11, at 40.

The important considerations of j udicia] economy that supported the court's decision inNRDC v. Abraham (Appliances) also apply in the instant case. if this Court grants DOE' s Motion to Dismiss, Petitioner CEC will file suit in the Eastern District of California, which would examine DOE's rulemaking record and assess whether the agency abused its discretion, followed applicable procedures, and based its findings on substantial evidence in the record. See 5 U.S.C. § 706; 42U.S.C. § 6306(b)(2). The losing party would no doubt appeal to this Court, which

in a de novo review would do exactly the same thing: examine DOE's rulemaking record and assess whether the agency abused its discretion, followed applicable procedures, and based its findings on substantial evidence in the record. See Nat'l Medical Enterprises v. Sullivan, 957 R2d 664, 667 (9th Cir. 1992). Thus there would be two court proceedings, dealing with exactly the same issues, and applying the exact same standard of review to the exact same record. That series of events would needlessly waste the courts' and the parties' resources, and it would delay a final resolution of the important issues presented here. As the Supreme Court said, regarding the Hobbs Act: [T]he submission of the cases, upon the records made before the administrative agencies will avoid the making of two records, one before the agency and one before the court, and thus going over the same ground twice. The most obvious advantage of direct review by a court of appeals is the time saved compared to review by a district court, followed by a second review on appeal. Lorion, 470 U.S. at 740-41 (citations and internal quotation mrks omitted).

Also quite instructive isMaier v. U.S. EPA, 114 F.3d 1032 (10th Cir. 1997) ("Muier"). That case dealt with the Clean Water Act ("CWA"), which requires EPA to set "effluent limitations" (water, pollution standards), and which has a 'bifurcated system of judicial review" quite similar to EPCA's:

12Section 1365 confers jurisdiction on the federal district courts

. . to

review any action where there is alleged a failure of the Administrator to perform any act or duty under [the CWA] which is not discretionary.

. . . Section 1369 of the CWA provides that [r]eview of the Administrators action

. . . in approving or promulgating any effluent limitation or other limitation

. . . may be had by any interested person in the Circuit Court of Appeals. Id. at l03637 (citations, footnotes, and quotation marks omitted). The petitioner challenged EPA's failure to revise an effluent limitation in response to his request. The court first noted that "Section 1369's language about [EPA's] 'action

... in approving or promulgating any.

. . limitation' arguably does not apply to [EPA's] refusal to promulgate a rule in the first instance." id. at 1037. This is similar to DOE's view that EPCA's section 6305(b)(l) reference to efficiency standards adopted under section 6295 "arguably" does not apply to DOE's waiver actions. Nevertheless, the 10th Circuit had "no difficulty" concluding that it had jurisdiction, for it found that the petitioner was "essentially challenging" a rule "that [EPA] had already promulgated" and therefore actually did fall within the court of appeal's express jurisdiction. Id. at 1039. Just so, the CEC's challenge to DOE's failure to grant a waiver under section 6297 is "essentially challenging" the preemptive effect of a section 6295 efficiency standard, which does fall within this Court's express jurisdiction under section 6306(b)(l). In addition, theMuiercourt relied, as did the court inNRDCv.Abraham (Appliances), on "[p]rudential concerns" about allocation of judicial resources:

13[U]nlike other actions in which the district court serves the important

functions of developing a complete record and defining and focusing the issues, in many appeals of administrative actions, the agency already has fulfilled those functions and there is no practical reason to submit the issues to two-tiered judicial review. Id. at 1038 n.l0 (citations and quotations marks omitted).

IV. The Cases Cited by DOE Do Not Support Its Position in contrast toNRDC v. Abraham (Appliances), none of the cases cited by DOE deal with EPCA, so they have little relevance to the instant case. Moreover, to the extent they are relevant, they actually favor jurisdiction in this Court.

For example, in Owner-Operators independent Drivers Ass 'n V. Skinner, 931 F.2d 582 (9th Cir. 1991), this Court ruled that the proper venue for review of certain drug-testing regulations by the Federal Highway Administration ("FHWA") was the court of appeals. The Court noted that "only 'afirin indication that Congress intended to locate initial [Administrative Procedure Act] review of agency action in the district courts' will supplement court of appeals review." id.
at588-589 (quoting Lorion, 470 U.S. at 745) (emphasis in original). Int'l Bhd. qf Teamsters v. Penci, 17 F.3d 1478 (D.C. Cir. 1994), is to the same effect (court of appeals had jurisdiction to hear challenges to rules of the FHWA, under authority transferred to the agency from the Interstate Commerce Commission).

14The other cases DOE cites are of no help to the agency. Five Flags Pipe

Line Co. v. Department of Trctnsportation, 854 F.2d 1438 (D.C.Cir. 1988). is irrelevant, for it turns on the "arcane issue" of which provision controls "where the language of the Statutes at Large conflicts with the language in the United States Code that has not been enacted into positive law." hi. at 1440. That issue certainly has no bearing on the instant case. Stone v. INS, 514 U.S. 386 (1995) is also irrelevant; it deals with the toiling of an Immigration and Nationality Act statute, and it contains no discussion of judicial jurisdiction. Cutler v. Hayes, 818 F.2d 879 (D.C.Cir. 1987), involves an agency's refusal to enforce existing regulations, rather than, as here, an agency rulemaking reaffirming the preemptive effect of its regulations. Moreover, the opinion cites Supreme Court precedent suggesting district court jurisdiction, see Id. at 887 n.61, but obviously no such precedent exists for the instant case. Finally, NRDC v. Abraham, 244 F.3d 742 (9th Cir. 2001) ("NRDC v. Abraham (Nuclear)"), involves two completely different statutory schemes with differing, and clear, judicial review provisions: the Nuclear Waste Policy Act and the Atomic Energy Act. The petitioner filed under one, but the court said that the agency's action arose under the other. In contrast, only one statute, EPCA, is involved in the instant case, and its judicial review provisions are ambiguous.

15DOE cites several other cases, but only because the agency must attempt to

distinguish them, for all of them held that jurisdiction to review the agency action at issue lay in the courts of appeals. (See Mot. to Dismiss 5-6 and cases there cited.) Of course, as we have noted, DOE fails even to cite the one case that actually deals with the issue here: judicial jurisdiction under EPCA. That case, NRDC v. Abraham (Appliances), demonstrates that the language of EPCA, the principles governing judicial review of agency action, and the need to avoid wasting judicial resources, all support the conclusion that this Court has jurisdiction in the instant case.

Con cm si On The Court should deny DOE's Motion to Dismiss.
June 18, 2007 Respectfully submitted,

William M. Chamberlain, Chief Counsel, SBN 050264 Jonathan Blees, Assistant Chief Counsel, SBN 070191 William Staack, Senior Staff Counsel, SBN 173579 Dennis L. Beck, Jr., Staff Counsel, SBN 179492 Attorneys for Petitioner CALIFORNIA ENERGY COMMISSION 1516 Ninth Street, Mail Station 14 S acrarnento, California 95814-5512 (916) 654-3953 JBlees @energy.state.ca.us

16Case Name: CALIFORNIA ENERGY COMMISSION, Petitioner, v. UNITED STATES DEPARTMENT OF ENERGY, and SAMUEL W. BODMAN, Secretary of Energy, Respondents Case No.: 07-71576 Court: United States Court of Appeals for the Ninth Circuit

PROOF OF SERVICE I am a citizen of the United States, over the age of 18 years, and riot a party to or interested in the within entitled cause. My business address is 1516 Ninth Street, Sacramento, California 95814. On June 18, 2007, I served the following: RESPONSE OF PETONER CAUFORMA ENERGY COMMISSION IN OPPOSITION TO RESPONDENT DEPARTMENT OF ENERGY'S

MOTION TO DISMISS by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail at Sacramento, California, addressed as follows: Samuel W. Bodman Secretary of Energy United States Department of Energy 1000 Independence Avenue, SW Washington, DC 20585 H. Thomas Byron III U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, NW., RM 7260 Washington, D.C. 20530-0001 Ms. Brenda Edwards-Jones U.S. Department of Energy, Building Technologies Program Mailstop EE-2J, Room 1J-018 1000 Independence Avenue, SW Washington, DC 20585-0121 Association of I--lome Appliance Manufacturers David Cal abrese, Vice President Government Relations 1111 19th Street, 7 Suite 402 Washington, DC 20036 AHAM David Calabrese, Vice President Government Relations 1111 i9 Street, NW, Suite 402 Washington, DC 20036
Mr. Bryan Berringer United States Department of Energy Office of Energy Efficiency and Renewable Energy Building Technologies Program, EE-2J 1000 lndependence Avenue, SW Washington, D.C. 20585-0121Charles A. Samuels

General Counsel. Association of Home Appliance Man ufacturers MINTZ, LEVIN, COHN, FERRIS, GLOYSKY AND POPEO. P.C. 701 Pennsylvania Avenue, Suite 900 Washington, D.C. 20004 John Mizroch Principal Deputy Assistant Office of Energy Efficiency and Renewable Energy United States Department of Energy 1000 independence Avenue, SW Washington, D.C. 20585-0121 Nathan R. Hambler, Esq. MThTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. 9255 Towne Centre Drive, Suite 600 San Diego, CA 92121 General Counsel, EPA U.S. Department of Energy Office of the District Counsel 1000 Independence Avenue. SW. Washington, D.C. 20585

Mr. Thomas DePriest United States Department of Energy Office of General Counsel, GC-72 1000 Independence Avenue, SW Washington, D.C. 20585-0121

II declare underpenalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 18, 2007 at Sacramento, California.

7